Assumpsit on a promissory note, signed by the defendant, and made payable to the plaintiff, or order. Plea, the general issue, and trial by jury.

On trial the execution of the note by the defendant was conceded. The defendant then gave in evidence a writing, purporting to be a receipt in full for the amount of the note, and signed by the plaintiff. He also gave in evidence a writing, signed by the plaintiff, and executed since the commencement of this suit, purporting to be an acknowledgment that the note had been paid by the defendant to him, and stating that this suit was prosecuted without his leave.

Evidence was then given, on the part of the plaintiff, tending to show, that, long before the commencement of this suit, the plaintiff assigned and sold the note to one Dudley, and that the note then became the property of Dudley, and that this fact was known to the defendant, and that he was duly notified thereof “long before said suit was commenced.”

The counsel on the part of the plaintiff requested the court to charge the jury, “that, if they found, that, at the time the defendant received the last mentioned writing, he knew that the note was the property of Dudley, it could not operate as any defence to prevent a recovery on the note.”

But the court did not so charge the jury, but instructed them, that if, at the time the defendant paid the note to the plaintiff, Dudley, or any other person, was the owner of the note, and if that fact was known to the defendant, the payment would not avail him in his defence, and the plaintiff would be entitled to recover, notwithstanding such payment; but that if the payment Was made by the defendant in good faith, he not knowing at the time that the plaintiff had sold or assigned the note to any other person, the plaintiff could not recover.

To which charge of the court, and refusal to charge as requested, the plaintiff excepted.

The doctrine that courts will protect the equitable interest of an assignee is no longer a question; it is supported by abundance of authorities, and is recognized by our courts; see 1 Dane’s Abr. 283, and the following pages, where all the cases are collected. 1 D. Ch. 346. 2 Aik. 373. 1 Vt. 168. It does not appear but that both of the receipts, or discharges, from the plaintiff, relied upon by the defendant, were executed after the note was sold and assigned to Dudley, and after the defendant had due notice thereof. But it does appear that the defendant had due notice that Dudley owned said note, long before the last discharge was executed, — which was not executed until after the commencement of this suit. Therefore this last discharge could not operate as a defence, to prevent a recovery on the note ; and the counsel for the plaintiff requested the court so to charge. But the court did not so charge, which was error in the court, in as much as the request was reasonable, and in accordance with law.

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